A woman restricted her jointure and confirmed it by oath before a judge extra territorium. Found that being actus voluntariæ jurisdictionis, it was competent before any judge.
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The case of Cochran of Balbachlaw and the Lady Bathgate, was debated in præsentia. The Lady pursuing a poinding of the ground for her whole annuity of 2500 merks, it was alleged, she had restricted herself to 1200 merks; and though this might seem donatio inter virum et uxorem, yet it was truly to the creditors, and was donatio juramento confirmata; which though it did not bind by the civil law, yet it was obligatory jure canonico, where omne jur amentum est servandum quod non vergit in dispendium et læsionem animæ, they having more loss by the perjury, than by keeping of the oath; and binds her by our 83d act of Parliament 1481. Answered, 1mo, If a woman has læsio enormissima by her renunciation and oath, she is reponed; because then she might renounce all her jointure and ruin herself, and she is privileged like a minor. Replied, There is a competency left her here; for the estate is but 2,000 merks a year, and 1,200 merks is more than the rationabilis tertia given to widows, being 200 merks above the half. Then she alleged her oath was null, 1mo, Because it was not signed: 2do, It was taken a judice non competente, viz. the Sheriff of Edinburgh, in the Abbey, which is extra ejus territorium. Answered to the 1st, Her oath is craved, if she did not judicially ratify. To the 2d, It is actus voluntariæ jurisdictionis, and needs not be pro tribunali, and any Judge is competent for that: Which the Lords found, but ordained to depone on the first. She also alleged, That the restriction was never a delivered evident; but it was urged her swearing supplied the not delivery.
On a bill given in by Balbachlaw, she was ordained to depone in presence of the Sheriff, and the Sheriff clerk who took her oath, and were to be confronted with her.
Fol. Dic. v. 1. p. 492. Fountainhall, v. 1. p. 496.
